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Mize v. Kai, Inc.

United States District Court, D. Colorado

February 23, 2018

VICKI MIZE, an individual, on her own behalf, Plaintiff,
KAI, INC., d/b/a Sa Wa Ra, Defendant.


          Nina Y. Wang United States Magistrate Judge

         This matter is before the court on two discovery motions:

(1) Plaintiff's Motion to Quash Subpoena Duces Tecum (“Motion for Protective Order”)[1] [#31, filed December 19, 2017]; and
(2) Defendant Kai, Inc.'s (“Defendant” or “Kai”) Motion for Sanctions, Pursuant to F.R.C.P. 37(d) (“Motion for Sanctions”) [#32, filed December 20, 2017].

         The undersigned considers the Motions pursuant to 28 U.S.C. § 636(c) and the Order of Reference dated May 30, 2017 [#13]. The court entertained oral argument by the Parties on January 17, 2018 [#34]. Having reviewed the Motions and associated briefing, the entire docket, and the applicable case law, the court respectfully DENIES the Motion for Protective Order and GRANTS IN PART and DENIES IN PART the Motion for Sanctions for the reasons stated herein.


         The court has previously discussed the background of this matter in detail [#28] and, therefore, will focus only on the facts most pertinent to the instant Motions. Plaintiff Vicki Mize (“Plaintiff” or “Ms. Mize”) initiated this action by filing her Complaint, pursuant to the Americans with Disabilities Act (“ADA” or “Act”), 42 U.S.C. § 12101 et seq., with the United States District Court for the District of Colorado on April 14, 2017.[2] [#1]. Ms. Mize “is an individual with disabilities which substantially limits major life activities.” [Id. at ¶ 7]. Because of her disabilities, Ms. Mize depends on the use of a wheelchair for her mobility; accordingly, she qualifies for and requires “reasonable accommodations to access and use” places of public accommodation (“PPA”). [Id.]. Defendant owns and/or operates one such PPA in Castle Rock, Colorado. [Id. at ¶ 1].

         On November 29, 2016, Plaintiff allegedly visited Defendant's PPA to enjoy its offered goods and services; however, Plaintiff “was denied full and equal access and full and equal enjoyment of the facilities, services, goods and amenities.” [Id. at ¶¶ 8-9, 31-32, 41]. Plaintiff alleges that members of the public who do not suffer from physical disabilities can utilize Kai's PPA without any restrictions. [Id. at ¶ 9]. Plaintiff asserts that Defendant has violated Title III of the ADA by discriminating against patrons with disabilities similar to Plaintiff. See [id. at ¶¶ 34-36, 38-41]; see also 42 U.S.C. § 12182(a). Plaintiff seeks declaratory relief; injunctive relief in the form of a preliminary and permanent injunction requiring Kai to remove all barriers to the use of its PPA by persons with disabilities and ordering Kai to undertake the necessary alterations to make its PPA accessible to individuals with disabilities; as well as attorney's fees and costs. [Id. at 8].

         On June 8, 2017, this court entered a Scheduling Order in this case that set forth the claims asserted by Plaintiff and contemplated the deposition of Ms. Mize. [#16 at 2, 7]. On November 29, 2017, Defendant noticed the deposition of Ms. Mize for December 20, 2017, at the offices of the Boulder County Bar Association. [#32 at 1]. On December 11, 2017, Plaintiff's counsel requested that the location of the deposition be moved to Castle Rock, Colorado, due to Plaintiff's medical condition. [Id.]. Defendant agreed, served an Amended Notice of Deposition, and reserved a space and court reporter for Castle Rock. [Id. at 2].

         On December 20, 2017, approximately 30 minutes prior to the start of the deposition, Plaintiff's counsel informed Defendant that Ms. Mize was experiencing distress over appearing for the deposition and, approximately 20 minutes later, informed Defendant that Ms. Mize was contemplating going to the hospital. [Id. at 3-4]. Around 1:10 p.m., counsel for Ms. Mize advised defense counsel that Ms. Mize would not appear for the scheduled deposition. [Id. at 4]. At the hearing on January 17, 2018, Plaintiff's counsel responded to this court's inquiry that Ms. Mize had not, in fact, sought any medical treatment on December 20, 2017. The Parties also disputed whether Ms. Mize had offered to dismiss her lawsuit against Defendant and whether Plaintiff's counsel had informed defense counsel that Ms. Mize refused to appear for a deposition at any time.

         Defendant also contends that Ms. Mize failed to appropriately respond to written discovery and produce requested documents. [#32 at 2-3]. The Parties and the court discussed the written discovery issues during the January 17 Status Conference, in lieu of Defendant filing a formal motion to compel. Defendant challenged Ms. Mize's invocation of the attorney-client privilege and work product doctrine. [#34]. Defendant also challenged Ms. Mize's refusal to produce documents related to Litigation Management and Financial Services (“Litigation Management”) based on the attorney-client privilege or work product doctrine.

         At the hearing, Plaintiff's counsel offered an Affidavit from Ms. Mize, explaining her medical condition and the circumstances surrounding her nonappearance on December 20. [#34-7]. Ms. Mize also submitted the documents reflected on her privilege log for the court's in camera review. See [#34-1 through #34-6]. This court also permitted the Parties to submit additional briefing no later than January 19, 2018. [#34]. On January 19, 2018, Defendant submitted a “Response” to the Motion for Protective Order[3] [#35] and Ms. Mize submitted a Response to the Motion for Sanctions [#36]. Defendant submitted a Reply to the Motion for Sanctions on January 20, 2018. [#37]. These Motions are now ripe for review.


         I. Rule 26 Rule 26(b)(1).

         Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the scope of permissible discovery in this action. Fed.R.Civ.P. 26(b)(1). The Rule permits discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Id. In considering whether the discovery sought is proportional, the court weighs the importance of the discovery to the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Id.

         This scope for discovery does not include all information “reasonably calculated to lead to admissible evidence.” The amendments to Rule 26 effective December 1, 2015, purposefully removed that phrase. See In re Bard Filters Products Liability Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016). As explained by the Bard court, the Advisory Committee on the Federal Rules of Civil Procedure was concerned that the phrase had been used incorrectly by parties and courts to define the scope of discovery, which “might swallow any other limitation on the scope of discovery.” Id. (citing Fed.R.Civ.P. 26 advisory committee's notes to 2015 amendment). The applicable test is whether the evidence sought is relevant to any party's claim or defense, and proportional to the needs of the case. Id. Rule 401 of the Federal Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Fed.R.Evid. 401.

         Rules 30 and 26(d)(3).

         Rule 30(a) provides that a party may take an oral deposition of its adverse party without leave of court. Fed.R.Civ.P. 30(a). Rule 26(d)(3) addresses the sequence of discovery and provides that “[u]nless the parties stipulate or the court orders otherwise for the parties' and witnesses' convenience and in the interests of justice: … methods of discovery may be used in any sequence.” Fed.R.Civ.P. 26(d)(3).

         II. Rule 37

         Rule 37 serves as the mechanism for enforcing compliance with discovery obligations and, among other things, allows the court to compel a party to respond to proper discovery requests-whether deposition questions, interrogatories, requests for production, or requests for admissions. Fed.R.Civ.P. 37(a)(3)(B). Rule 37(d) also permits this court, upon motion, to sanction a party for failing to appear for her own deposition. Fed.R.Civ.P. 37(d)(1)(A)(i). Permissible sanctions include reasonable expenses, including attorney's fees, unless the failure was substantially justified or other circumstances make the award of fees unjust. Fed.R.Civ.P. 37(d)(3). It is also well established that the party seeking to invoke work product immunity or attorney-client privilege has the burden to establish the applicability of the immunity/privilege. See, e.g., Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984).

         II. Privileges

         Because the court's subject matter jurisdiction arises from federal law, federal common law with respect to privileges governs in this action. Roe v. Catholic Health Initiatives Colorado, 281 F.R.D. 632, 636 (D. Colo. 2012).

         Attorney-Client Privilege.

         Under federal common law, the attorney-client privilege arises (1) where legal advice of any kind is sought; (2) from a professional legal advisor in his capacity as such; (3) the communications relating to that purpose; (4) made in confidence; (5) by the client; (6) are at his instance permanently protected; (7) from disclosure by himself or by the legal advisor; (8) unless the protection is waived. Id. (citing Williams v. Sprint/United Mgmt. Co., No. 03-2200-JWL-DJW, 2006 WL 266599, at *2 (D. Kan. Feb. 1, 2006)).

         Work ...

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